VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P170/2024
Permit Application no.PLN/2023/209 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic), Macedon Ranges Planning Scheme, Neighbourhood Residential Zone Schedule 11, Environmental Significance Overlay Schedule 4; Construction of two dwellings on a lot; Planning Policy; Neighbourhood Character	

Applicant	Kevin Sheppard & Joan Sheppard	

Responsible Authority	Macedon Ranges Shire Council	
Respondent	Noah Williams	

SUBJECT LAND	11 Orr Street
KYNETON VIC 3444	

HEARING TYPE	Hearing	

DATE OF HEARING	10 October 2024	

DATE OF ORDER	4 November 2024	

CITATION	Sheppard v Macedon Ranges SC [2024] VCAT 1052	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Dennis Doricic Design	
•	Drawing numbers:	1 to 15 inclusive all Rev 3	
•	Dated:	16 August 2024	
Permit granted
2	In application P170/2024 the decision of the responsible authority is set aside.
3	In planning permit application PLN/2023/209 a permit is granted and directed to be issued for the land at 11 Orr Street Kyneton in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted

	
Clause 32.09-7	Construction of two dwellings on a lot.	

Katherine Paterson
Member			

Appearances
For applicant	Russell Hocking, Town Planner, Cityshire Planning Pty Ltd	
For responsible authority	Emily Hardy, Town Planner, Macedon Ranges Shire Council	
For respondent	Noah Williams, in person	

Information
Description of proposal	Construction of two dwellings on a lot.  Each dwelling is to be two storey in height and contain two bedrooms.  A single garage has been provided for each dwelling, which is accessed via a new crossover to Orr Street located in the south western corner of the site.  The design of the dwellings incorporates pitched roof form and is constructed in a variety of materials and finishes including Axon Smooth Cladding and Colourbond, using a variety of colours including Surf Mist, Shale Grey and Basalt. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Macedon Ranges Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 11, Environmental Significance Overlay Schedule 4	
Permit requirements	Clause 32.09-7 – Construct two dwellings on a lot.  	
Land description	The subject site is a rectangular shaped allotment with an area of 671 square metres.  The site is vacant and devoid of vegetation.  A single crossover is in the south east corner of the site providing access to Orr Street.	
Tribunal inspection	24 October 2024   	

  Reasons
What is this proceeding about?
1	Kevin and Joan Sheppard wish to construct two dwellings on a lot at 11 Orr Street in Kyneton.  Following the decision of Macedon Ranges Shire Council to refuse to grant a planning permit for the development, they have requested that the Tribunal review this matter.  
2	Macedon Ranges Shire Council refused the application on several grounds, but are primarily concerned that the proposed two storey height of the development is inconsistent with the design outcomes sought for the Post World War II precinct in which this site is located and the objectives of the Neighbourhood Residential Zone Schedule 11.  They are also concerned about the provision of private open space within the front setback of dwelling 1.
3	Noah Williams initially objected to the proposal.  Following the circulation of amended plans by the permit applicant in accordance with the Tribunal’s practice note, he advised the Tribunal that his concerns with the proposal were addressed through the changes shown on these plans and he no longer objected to the application.  These plans were substituted for the application at the commencement of the hearing.  
What are the key issues?
4	Having considered all the submissions and evidence and inspected the subject land and its locality I find that the key issues in this proceeding are: 
•	Is the proposal respectful of the neighbourhood character? 
•	Is the use of the front garden for secluded private open space for the dwelling one acceptable? 
Summary of findings
5	I have decided to grant a permit for the following reasons:
•	I find that the first floor will be comfortably absorbed into this streetscape, and the design is consistent with the neighbourhood character policies for the Kyneton Post WWII Residential Precinct.  
•	With the changes I have made, I find that the provision of secluded private open space for dwelling 1 is acceptable.  
6	My reasons follow.  
Is the proposal respectful of the neighbourhood character?  
7	The purposes of the Neighbourhood Residential Zone Schedule 11 (NRZ11) include:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To recognise areas of predominantly single and double storey residential development.
•	To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
8	The schedule to the zone contains neighbourhood character objectives for the Kyneton Post WWII Residential Precinct which are:
•	To facilitate limited infill development.
•	To encourage a consistent pattern of detached dwellings that maintains the area’s single storey scale.
•	To encourage landscaped front and rear gardens with improved vegetation and canopy tree cover.
•	To retain open front gardens that merge into the nature strip.
9	The schedule to the zone provides a mandatory building height of nine metres and two storeys, and as such, two storey dwellings may be contemplated within the precinct.  
10	Clause 15.01-5L contains the neighbourhood character policy for Kyneton including the Post WWII Residential Precinct.  It is policy for Kyneton to maintain the single storey character of established precincts and minimise the visibility of second storey development from the street by ‘avoiding sheer two storey front walls, containing the second storey within the roof form or setting it behind the first storey roof’.  The policy goes on to state that multi-dwelling developments that present to the street as a single, detached dwelling will be supported.  The policy requires consideration of the following guidelines:
•	Locating second storey elements of multi-dwelling development centrally within the site or where they are substantially screened by existing built structures or vegetation.
•	Reducing the scale and visual bulk of the second storey of multi-dwelling development by incorporating articulation and upper level side and rear setbacks.

Figure 1 – Extract from Drawing 1 (cover sheet) prepared by Dennis Doricic Design (Rev 3 dated 16 August 2024)
11	The above illustration shows that dwelling one is proposed to present to the street as a single storey dwelling with a rear upper level.  The ground floor is proposed to be set back 6.49 metres with the upper level setback 8.59 metres.  I find that the setback to the upper level is sufficient to ensure that the first floor element is recessed from the streetscape.  
12	I note that two storey dwellings are not foreign to this streetscape, with two recently constructed large two storey single dwellings located at 15 and 17 Orr Street.  
13	Whilst the design has not utilised some of the design suggestions provided within the policy at Clause 15.01-5L, I find that the approach taken in this case is sufficient to achieve the outcome sought for the precinct which seek to preserve the single storey scale of the precinct by minimising the appearance of the upper level from the streetscape.  
14	As I find that the design is acceptable, I have not required the design changes sought in the draft conditions circulated by the responsible authority, such as additional windows, changes to the orientation of the cladding and roof pitch.  

Is the use of the front garden for secluded private open space for the dwelling one acceptable? 

Figure 2 – Extract from drawing 6 prepared by Dennis Doricic Design (Rev 3 dated 16 August 2024)
15	As shown in the plan above, it is proposed to create a large area of secluded private open space for dwelling 1 by utilising part of the front setback as well as the side and rear setback.  The space will be accessible via two sets of sliding doors which will ‘book end’ the kitchen and living room.  The space will have a combined area of 72.8 square metres.  The fence located within the front setback of the proposal is proposed to be 1.5 metres high and be 75% opaque.  
16	During the hearing Mr Hocking advised that his client had a strong desire to maintain the proposed arrangement for privacy and security reasons.  
17	Clause 15.01-5L seeks to maintain the garden setting of dwellings by using traditional front and rear setbacks, building footprints, inclusion of canopy trees into new landscaping and minimisation of hard surfaces.  It is policy to avoid front fences taller than 1.2 metres within the front setback of dwellings.  
18	With Orr Street there are a variety of front fencing styles, but generally they are low and transparent.  Side fences such as that on the adjoining property at 2 Elizabeth Avenue are generally higher and solid.   
19	I find that the two metre setback of the proposed fence to the street will be at odds with the character of the area, and needs to be relocated either to the frontage of the site or to the sideage of the dwelling.  Given the layout of the proposed dwelling, I find that it is appropriate that the fence is relocated to the frontage.  Whilst at 1.5 metres high it will be taller than that desired by policy, given it will adjoin the solid side fence of 2 Elizabeth Street I find that this will be an acceptable response to the streetscape.  
20	A key characteristic of the area is well maintained front gardens, and whilst I find that the overall development is acceptable, I consider that it is appropriate that the site be landscaped.  A landscape plan has been prepared by the architect for the application, which whilst indicative does comply with the requirements of Standard B13, as varied by the schedule to the NRZ11, which requires the provisions of at least two canopy trees, one of which is planted in the front setback of the dwelling.  The plan indicates that seven canopy trees are to be provided on the site.  As it does not appear to have been prepared by a qualified landscape architect or designer, I am concerned that the species chosen, and their location may not be appropriate.  Given I have required the relocation of the fence, I have required the preparation of a revised landscape plan which has been prepared by a suitably qualified person.  I have required the implementation and maintenance of this plan as conditions of permit.  
What conditions are appropriate?
21	Draft conditions were provided by the responsible authority on the day of the hearing and were discussed at the hearing.  Any changes to the conditions reflect those discussions as well as further consideration by the Tribunal.  
22	I have deleted the requirement to relabel the room within dwelling two identified as store on the plans to ‘bedroom’ as I find that this is unnecessary.  Whilst this room may be used as a bedroom, it is very small (2.6 m by 2.6 metres) in area and smaller than that provided for bedrooms at Standard D26 for apartments.  If this room is used as a bedroom the dwelling will remain compliant with the parking requirements of the scheme as two car parking spaces have been provided for the dwelling.  
23	I have also included the Tribunal’s standard expiry conditions.  
Conclusion
24	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson
Member			
Appendix A – Permit description and Conditions

Permit No:	PLN/2023/209	
address of the land	11 Orr Street Kyneton	

The Permit allows:

Planning scheme clause	Matter for which the permit has been granted

	
Clause 32.09-7	Construction of two dwellings on a lot.	
Conditions to apply to the permit:
Compliance with documents approved under this permit
1	At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.
Amended Plans Required
2	Before the development commences, amended plans drawn to scale to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.  The amended plans must be drawn to scale with dimensions and an electronic copy must be provided.  When approved, the plans will be endorsed and will then form part of this permit.  The plans must be generally in accordance with the plans by Dennis Doricic Design, sheet numbers 1 – 15 inclusive (Rev 3 dated 16 August 2024), but modified to show:
(a)	Relocation of front fence for Dwelling 1 enclosing the secluded private open space to the front boundary of the property.  The setback of the fence to the western boundary must remain the same.  
(b)	An updated landscape plan, prepared by a suitably qualified landscape architect or designer, which shows the relocated front fence and meets the requirements of Standard B13, as varied by the schedule to the Neighbourhood Residential Zone Schedule 11.
(c)	Further design measures to the windows for first floor of Dwelling 2 along the western elevation in a manner to avoid overlooking into the secluded private open space of the property at 37 Jacobs Avenue to comply with Clause 55.04-6 of the Scheme.
(d)	Relocation of the air conditioning unit on Dwelling 1 from the top of bedroom 2 to the top of sitting room on the same floor to avoid noise impacts to comply with Clause 55.04-8 of the Scheme.
Endorsed plans
3	The layout of the development as shown on the endorsed plans must not be altered unless with the prior written consent of the responsible authority.
4	Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
Landscaping
5	Unless with the prior written consent of the responsible authority, before the occupation of the development, the landscaping works shown on the endorsed plans must be carried out, completed and thereafter maintained to the satisfaction of the responsible authority.
6	At all times the landscaping shown on the approved landscape plan must be maintained (including the replacement of any dead, diseased or damaged plants) to the satisfaction of the responsible authority.
Boundary Fencing
7	Prior to the completion of development, any new boundary fencing required by this permit must be constructed and maintained to the satisfaction of the responsible authority and paid for in full by the owner of the land.
Services
8	All pipes, fixtures, fittings, ducts and vents servicing any building on the land, other than storm water down pipes and gutters above the ground floor storey of the building, must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
9	Any equipment required for refrigeration, air-conditioning, heating and the like must be suitably insulated for the purpose of reducing noise emissions and must be located so as to not be highly visible from the street to the satisfaction of the responsible authority.
Construction Phase
10	All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the responsible authority and all care must be taken to minimise the effect of such activities on the amenity of the locality.
Car Parking
11	Areas set aside for the parking and movement of vehicles as shown on the endorsed plan must be made available for such use and must not be used for any other purpose.
Pedestrian sightlines
12	The minimum sight line for pedestrian safety must be provided at the exit lane frontage so as to accord with Clause 52.06-9 of the Macedon Ranges Planning Scheme.
MRSC Engineering Unit
13	No polluted and/or sediment-laden run-off is to be discharged directly or indirectly into drains or watercourses. Soil erosion control measures must be employed throughout the works to the satisfaction of the responsible authority.
14	Stormwater must be discharged to the nominated legal point of discharge into the requirements of the responsible authority. In this regard, no water must be discharged from any pipe or paved area onto the surface of any adjacent land.
15	Prior to the commencement of use, the proposed crossover within Orr Street must be constructed to seal standards to the satisfaction of the responsible authority.
16	Prior to the commencement of works, engineering plans with computations for the internal drainage and method of disposal of stormwater from all roofed and sealed areas, including the use of an on-site detention system must be submitted to the Council for approval.  These internal drainage works must be completed to the Council’s satisfaction prior to using or occupying any building on the site.
17	Prior to the commencement of works, the driveway to the dwelling must be constructed to meet the following requirements to the satisfaction of the responsible authority:
(a)		The driveway, including any waterway crossing, must be constructed to a standard so that it is accessible in all weather conditions and capable of accommodating a vehicle of 15 tonnes for the trafficable road width.
(b)		The driveway must have a minimum trafficable width of 3.5m, be clear of encroachments 4 metres vertically and have no obstructions within 0.5m on either side of the formed width of the driveway.
(c)	Curves must have a minimum inner radius of 10 metres.
(d)		The average grade must be no more than 1 in 7 with a maximum of no more than 1 in 5 for no more than 50 metres.
(e)		Dips must have no more than a 1 in 8 entry and exit angle.
18	Prior to the commencement of works, redundant crossover must be removed to the satisfaction of the responsible authority.
Coliban Water
19	The owner is required to reach agreement with Coliban Water for the provision of reticulated water and sewerage services to each of the proposed dwellings located within the development site and comply with any requirements arising from any effect of the proposed development on Coliban Water assets.
Services are to be provided in accordance with our specifications.
20	The reticulated sewer main extension required to separately service each of the proposed dwellings located within this development site, must be designed, constructed and finalised in accordance with Coliban Water’s Developer Installed Works process. Sewer mains are required to provide full lot control.
All Coliban Water assets (sewer main) within the development site, are required to be protected by registered easements created in favour of Coliban Region Water Corporation.  The minimum acceptable width of an easement to protect a sewer main, is 2.50 metres.
21	Application to connect the proposed residences to Coliban Water’s reticulated water supply and gravity sewerage service network, will need to be made through our consent to connect process, prior to the property service drains (sewerage service), being connected to Coliban Water assets in accordance with our conditions.
Coliban Water’s approved contractor is required to install the water tappings, meter assemblies and digital data devices (water meters) which will be located in an accessible location within 2.0 metres but no closer than 600mm, inside the title boundary line fronting the road reserve containing a water main.
Evidence is required to be forwarded to Coliban Water verifying the locations of the property service drains, once the residences have been constructed.
The evidence required is a letter/statement from a registered and licensed plumbing contractor for the property drains.  A detailed as-constructed plan of the drains and a copy of the Victorian Building Authority’s Compliance Certificate are required to be forwarded to Coliban Water for record purposes.
22	All private works for water supply and sanitary drainage must be constructed in accordance with the National Plumbing and Drainage Code of Australia being AS 3500, the MRWA Water Metering & Servicing Guidelines 2022 and or any relevant requirements of Coliban Water.
23	Build Over Agreement will be required to be applied for and conditions complied with, prior to any proposed structure being constructed within 1 metre horizontally of an existing or required sewer main necessary for the provision of sewerage services for Dwelling 1, or a pergola, decking, retaining wall etc over or within 1 metre of the existing or required sewer main alignment which traverses this development site.
24	Please note under section 165(5) of the Water Act 1989 (Vic), Coliban Water is not required to ensure that the water pressure is adequate for firefighting.  It is important to note that Coliban Water does not guarantee fire flows.
25	The owner of the land will be required to make payment of a New Customer Contribution (NCC) to Coliban Water .  The contribution required is based upon the number of proposed dwellings to be connected to Coliban Water’s water supply and sewerage network.  A Tax Invoice will be supplied to the owner as part of Coliban Water granting its consent to applications to connect to the water and sewer mains.
Expiry of permit for development
26	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

– End of conditions –